Pretrial Order and Case Management Plan

=== Pretrial Order and Case Management Plan ===

THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ______________ DIVISION

CIVIL CASE NO. Case Number

[STYLE OF THE CASE]

PRETRIAL ORDER AND CASE MANAGEMENT PLAN

IN ACCORDANCE WITH the Local Rules of the Western District of

North Carolina and pursuant to Rule 16 of the Federal Rules of Civil

Procedure, the undersigned enters the following Pretrial Order and Case

Management Plan in this matter.

DEADLINES AT A GLANCE

Rule 26 Disclosures 14 days after Entry of CMO Designation of Mediator 21 days after Entry of CMO Expert Reports - Plaintiff

Defendant

Discovery Mediation Motions Deadline Trial

3 months after Joinder of Issue 4 months after Joinder of Issue 6 months before Trial 5½ months before Trial 5 months before Trial 1st Trial Term on or after 14 months after Joinder of Issue

A.

TRACK ASSIGNMENT: This case is assigned to the

I.

STANDARD Case Management Track.

II.

A. DISCOVERY GUIDELINES: Each party may propound no

more than twenty (20) single part interrogatories; each

party may submit no more than twenty-five (25) requests

for admissions to any other party; each party may depose

no more than six (6) fact witnesses without prior approval

of the Court. Parties may, however, by agreement,

increase the numbers set forth in this paragraph, and if

unable to agree, may then seek Court intervention by

motion.

B. RULE 26 DISCLOSURES: The information required by

Federal Rule of Civil Procedure 26(a)(1) shall be

exchanged no later than Click here to enter a date.

C. RESPONSES

TO

INTERROGATORIES

AND

REQUESTS FOR ADMISSION: Every response to an

interrogatory or

request

for admission, and every

objection thereto, shall be preceded by the original

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number and complete

text of

the corresponding

interrogatory or request for admission.

D.

THE MAINTENANCE OF DISCOVERY MATERIALS:

Discovery materials are NOT to be filed. All counsel are

advised to consult the Local Rule which provides that

while depositions,

interrogatories, and

requests

for

admission, and responses thereto, must still be served on

all parties, they are no longer to be filed unless upon

order of the Court. The parties are responsible for the

preservation of any and all discovery materials they may

generate.

E. USE OF DEPOSITIONS AT TRIAL: If depositions are

taken during the discovery period which counsel intend to

use at trial, counsel are directed to exchange page/line

designations and to resolve any objections thereto prior to

the final pretrial conference. In the event that video

depositions are taken, counsel are directed to edit the

video accordingly so that the video may be shown without

interruption. Any objections to designations of deposition

testimony (whether such testimony is presented in written

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form or through a video recording), which cannot be

resolved by the parties themselves, must be raised in

time to be addressed at the final pretrial conference.

Failure to do so will result in objections being deemed to

be waived.

F.

PROTECTIVE ORDERS: Any objections made

to

discovery requests shall be accompanied by a draft

proposed protective order if such order is, or will be,

requested. When counsel submit proposed protective

orders, they shall include a provision leaving the ultimate

disposition of protected materials subject to a final order

of the Court on the completion of litigation.

G. DISCOVERY COMPLETION: All discovery, with the

exception of de bene esse depositions which are

discussed below in section H, shall be completed no later

than Click here to enter a date. Counsel are directed to

initiate discovery requests and notice or subpoena

depositions sufficiently in advance of the discovery

completion deadline so as to comply with this Order.

Discovery requests that seek responses or schedule

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depositions after the discovery completion deadline are

not enforceable except by order of the Court for good

cause shown. The parties may consent to extensions of

the discovery completion deadline so long as any such

extension expires no later than fourteen (14) days prior to

the Trial Date (as that term is defined in this Order). If a

party requests an extension of time to respond to

discovery requests or to extend the discovery deadline,

the result of consultation with opposing counsel must be

stated in the motion.

H. Depositions taken for the sole purpose of preserving

testimony for trial are not considered discovery for the

purposes of this section provided that 1) the witness will

be unavailable for trial for one of the reasons set forth in

Rule 32(a)(3) and 2) the reason for such unavailability is

that the witness resides outside the subpoena power of

this Court and the party seeking to take such deposition

has failed, after making a good faith effort, to obtain a

commitment from the witness to testify at trial voluntarily,

and 3) such deposition can be concluded in time so that

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the portions of the deposition to be used at trial can be

designated and objections thereto resolved at the final

pretrial conference, but in any event no later than fourteen

(14) days prior to the Trial Date. Such depositions should

be presented at trial by video recording whenever

possible.

I.

EXPERT WITNESSES: Each side shall be entitled to call

up to five (5) expert witnesses without further leave of the

Court. Reports for retained experts under Rule 26(a)(2)

will be due from the plaintiff no later than Click here to

enter a date. and from defendant no later than Click here

to enter a date. Supplementations under Rule 26(e) shall

be ongoing throughout these proceedings.

III.

A. MOTIONS DEADLINE: All motions except motions in

limine and motions to continue shall be filed no later than

Click here to enter a date. This deadline shall also

pertain to all motions attacking the qualifications of an

expert witness (i.e., Daubert motions). Parties may not

extend

this deadline by agreement and stipulated

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extensions of the completion of discovery do not extend

the Motions Deadline.

B. MOTIONS HEARINGS: Hearings on motions ordinarily

will be conducted only when the Rules require a hearing,

or when the papers filed in support of and in opposition to

the motion do not provide an adequate basis for decision.

The Clerk will notify all parties of the date and time set for

the hearing.

C. MEMORANDA

IN SUPPORT OF MOTIONS: Every

motion shall include, or be accompanied by, a brief

written statement of the facts, a statement of the law,

including citations of authority and the grounds on which

the motion is based. No brief may exceed 25 pages

without Court approval. Briefs must be double spaced

and in at least 14 point type. Motions not in compliance

with this order are subject to summary denial. No

memorandum, however, need accompany those motions

exempted from this provision under Local Rule 7.2 and

simple consent motions, motions to continue, and motions

to withdraw as counsel provided that such motions

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contain an adequate statement of the basis for the relief

sought.

D. RESPONSES TO MOTIONS: Responses to a motion, if

any, must be filed within fourteen (14) days of the date on

which the motion’s certificate of service is signed. The

Court generally deems a motion ripe for determination

upon the timely filing of the response but may, in its

discretion, rule on a motion before the response time

expires, if warranted by the circumstances. Where a

motion is not responded to within the time provided, the

Court may grant the relief requested, if good cause is

shown in such motion. The filing of a reply brief is

allowed only if the response raises new matters. The

reply shall be limited to a discussion of such newly raised

matters. Such reply should be filed no later than seven

(7) days after the filing of the response, shall not exceed

ten (10) pages in length, and shall be double spaced and

in at least 14 point type.

E.

EXTENSIONS OF TIME TO RESPOND: If counsel need

more than fourteen (14) days to file a response, they shall

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file a motion for extension of time to respond prior to the

expiration of the response deadline. The moving party

must state within the motion what actions have been

undertaken to consult with opposing counsel regarding

the requested extension and must notify the Court of the

views of opposing counsel regarding the request. If the

party fails to make the requisite showing, the Court may

summarily deny the request. Such motions for extension

will be granted only upon a showing of cause and should

be the exception rather than the rule.

F. MOTIONS TO COMPEL: A motion to compel must

include a statement by the movant that the parties have

conferred in good faith in an attempt to resolve the

dispute and are unable to do so. Motions to compel must

be filed within the discovery period or they may be

deemed waived. After reviewing the merits of a motion

and the response thereto, the Court may order the parties

to confer again in a good faith attempt to resolve the

dispute or to narrow the issues. Consistent with the spirit,

purpose, and explicit directives of the Federal Rules of

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Civil Procedure, the Court expects all parties to attempt in

good faith to resolve discovery disputes without the

necessity of Court intervention. Failure to do so may

result in appropriate sanctions.

IV. ALTERNATIVE DISPUTE RESOLUTION

A. Mediation IS ordered in this case.

B. Mediation shall be completed by Click here to enter a

date.

C. Within twenty-one (21) days of the entry of this Order the

parties shall select and agree upon a mediator and shall

file with the Court a report stating the identity of the

mediator selected. If the parties are unable to agree upon

a mediator they shall, within twenty-one (21) days of the

entry of this Order, file with the Court a report stating that

they have been unable to agree upon a mediator and the

reasons for such inability.

D. Within seven (7) days of the completion of the mediation

there shall be filed with the Court a Mediation Report

which states whether all, a portion or none of the case

has settled. The Mediation Report shall be filed with the

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Court electronically in such a form as to be docketed by

the Clerk. It shall be the responsibility of the mediator to

file the Mediation Report with the Court, except that if the

mediator does not have an electronic case filing (ECF)

account with the Clerk, then it shall be the responsibility of

the Defendant(s) to file the Mediation Report for the

mediator. It is the responsibility of the Defendant(s) to

determine whether the mediator has an ECF account with

the Clerk.

E.

If this case is resolved by a settlement of the parties,

whether at mediation or otherwise, the payors shall pay

all sums required by the parties’ settlement agreement

and the parties shall file all such documents with the

Court so as to effectuate the closing of the Court file

within thirty (30) days of reaching such agreement, or

within thirty (30) days of the mediation, whichever is

sooner, unless additional time is sought and granted by

the Court.

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V. TRIAL PROCEDURES

A.

TRIAL SUBPOENAS: Counsel must subpoena all

witnesses at least fourteen (14) days before the day on

which the Clerk of Court has set the case for trial (Trial

Date). The Court may elect not to enforce subpoenas

that have not been issued in compliance with this

deadline or, if requested, may quash subpoenas that

have not been issued in compliance with this deadline.

B. COUNSEL’S DUTIES PRIOR TO TRIAL: Either one week

before the Trial Date or the business day immediately

preceding the final pretrial conference, whichever is

earlier, counsel for all parties shall:

(1) Discuss the possibility of a settlement;

(2) Exchange copies of exhibits or permit inspection if

copying is impractical;

(3) Number and become acquainted with all exhibits;

(4) Agree upon the issues to be submitted to the jury (if

a jury trial has been requested), reduce such issues

to writing in the form of a proposed verdict sheet,

and file such proposal with the Court. If counsel

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cannot agree upon the wording of the proposed

verdict sheet, each party is directed to file his/her

own version with the Court; and

(5) Agree upon stipulations of fact and file them with

the Court. The parties are encouraged to stipulate

to as many facts as possible to facilitate the trial of

the case.

C. PROPOSED JURY INSTRUCTIONS: If a jury trial has

been requested, all counsel shall submit proposed jury

instructions no later than one (1) week before the Trial

Date or the business day immediately preceding the final

pretrial conference, whichever is earlier. Additional

instructions may be submitted during

the

trial as

circumstances may require. Counsel should number

each proposed

instruction and shall submit each

proposed instruction on a separate page. Each proposed

instruction must contain a supporting citation as a

footnote. A proposed instruction without a supporting

citation will not be considered. Boilerplate introductory

instructions are not required to be submitted.

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D. COUNSEL’S PRE-TRIAL FILINGS: The parties are to file

the following with the Court:

(1) No later than fourteen (14) days prior to the final

pretrial conference, counsel for each party shall file

any motions in limine. Responses to any such

motions must be filed no later than seven (7) days

prior to the final pretrial conference. For the

purposes of this provision, Daubert motions are not

to be considered motions

in

limine, but are

addressed in another portion of this Order.

(2) No later than one (1) week before the Trial Date or

the business day immediately prior to the final

pretrial conference, whichever is earlier, the parties

shall file with the Court:

(a) The issues and stipulations as called for in

Paragraph B(4) and (5) above;

(b) The

line and page designations of any

depositions that counsel intend to introduce at

trial. The parties should be prepared to

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address any objections to such designations

at the final Pretrial Conference;

(c) A trial brief addressing all questions of law

and any anticipated evidentiary issues. Such

trial brief shall not exceed 25 pages and shall

be double spaced and in at least 14 point

type; and

(d) Proposed

jury

instructions, as described

above, or in the event of a non-jury case,

proposed findings of fact and conclusions of

law.

(3) No

later

than

the business day

immediately

preceding the Trial Date, counsel for each party

shall file the following documents with the Clerk of

Court and provide a hard copy to the presiding

judge or his courtroom clerk:

(a) A witness list containing the name of every

proposed witness;

(b) A statement of the education, experience, and

qualifications of each expert witness, including

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the particular field in which the party intends to

qualify

the witness as an expert.

The

statement should also indicate whether the

parties have stipulated to the qualifications of

each expert witness;

(c) Stipulations concerning the authenticity and

admissibility of as many proposed exhibits as

possible; and

(d) An exhibit list. The exhibit list should not

include any exhibits for which there is a very

low likelihood that they will be introduced.

Further, the exhibit list should designate each

exhibit individually; the use of group exhibits

(e.g., designating a series of photographs as

one exhibit) is discouraged. If necessary, the

parties may supplement their exhibit lists at

trial with additional exhibits upon a showing of

just cause and a lack of surprise or unfair

prejudice to the opponent.

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E.

EXHIBIT NOTEBOOKS: If counsel for any party intends

to tender more than fifteen (15) documentary exhibits,

counsel for that party shall prepare two (2) identical

exhibit notebooks, or sets of exhibit notebooks, containing

only those exhibits listed on the party’s exhibit list.

Exhibits which have a very low likelihood of being

introduced and which have not been included on the

party’s exhibit list should not be included in the exhibit

notebooks. The exhibit notebooks shall contain an index

of the exhibits and a copy of each exhibit. Counsel shall

tab each exhibit separately (i.e., no group exhibits) and

shall numerically arrange each exhibit notebook, or set of

exhibit notebooks. The exhibit notebooks are necessary

so that the witness and the Court can each have a set of

exhibit notebooks in the event that technical difficulties

prevent

the parties

from presenting

their exhibits

electronically. The parties may seek leave of Court to

waive the requirement of exhibit notebooks where hard

copies of the proposed exhibits would be voluminous or

otherwise unwieldy.

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F.

FORMAT FOR EXHIBIT LIST: In preparing the exhibit list,

counsel separately shall identify and number each exhibit,

shall arrange the list numerically by exhibit number, and

shall place the following headings on the exhibit list:

Exhibit #

Description

Stipulation of Authenticity

Stipulation of Admissibility

Objection

Identified by

Admitted

It is not necessary for counsel to make entries in either

the “Identified by” column or the “Admitted” column.

Counsel should only enter “Yes” or “No” for each exhibit

in the columns regarding the stipulations of authenticity

and admissibility.

G.

JURY VOIR DIRE: Following initial voir dire by the Court,

counsel will be given a limited opportunity to conduct

additional voir dire, subject to the Court’s supervision for

reasonableness and relevance.

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H. SANCTIONS FOR COUNSEL’S FAILURE TO MEET

DEADLINE FOR FILING: If any party fails to comply

timely with any of the requirements set forth in this Order,

the Court may impose sanctions, including but not limited

to, a $50.00 per day fine assessed against counsel.

I.

ASSESSMENT OF JURY COST: Whenever a civil action

scheduled for a jury trial is settled or otherwise disposed

of in advance of the actual trial, the Court may assess all

jurors’

costs,

including Marshal’s

fees, mileage

reimbursement, and per diem fees, equally against the

parties or otherwise may determine appropriate

assessments unless the Clerk’s Office is notified by 4:00

p.m. of the business day immediately preceding the Trial

Date or the parties otherwise establish good cause why

the Court should not assess jury costs against the parties.

The Court may set an earlier deadline by further Order.

When any civil jury trial is settled at trial in advance of the

verdict,

the Court

likewise may make

the same

assessments unless the parties establish good cause why

the Court should not do so.

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VI.

A.

TRIAL DATE: Trial

is scheduled

to commence

WITH/WITHOUT a jury during the first civil trial term

beginning on or after Click here to enter a date. The

Court will endeavor to set the date of the term of court in

which this case will tried at least eight months in advance.

The term “Trial Date” has been used throughout this

Order to refer to the first day of the term in which this

case is ultimately set for trial, that also being the date on

which jury selection is scheduled to begin for this case.

B.

LENGTH OF TRIAL: Trial is anticipated to last _____

days.

C. A district judge or magistrate may convene a settlement

conference at any time.

VII.

To the extent that any provision of the Local Rules conflict with

this Order, this Order shall govern. This Order is subject to

modification only by Order of this Court and may not be

modified by agreements among the parties.

IT IS SO ORDERED.

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